Mr Mark Tighe and The National Asset Management Agency (NAMA)

Case Number: 160255

Whether NAMA was justified in refusing access to records concerning correspondence between it and a named TD

Conducted in accordance with section 22(2) of the FOI Act, by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

The applicant made an FOI request to NAMA on 3 February 2016 for "[a]ll correspondence between TDs and NAMA (sent and received) from January 1 2012 to date (Feb 3, 2016)".

The request encompassed a large number of records. On 1 March 2016, NAMA granted full and partial access to some records, and relied on sections 37(1) and 41(1)(a) of the FOI Act (exemptions concerning personal information and enactments relating to non-disclosure of records) in withholding the rest. It listed all the records in a schedule that listed the names of the various TDs. The applicant sought an internal review of this decision on 15 March 2016, which NAMA affirmed on 6 April 2016.

On 11 June 2016, the applicant sought a review by this Office of NAMA's decision. He subsequently narrowed the scope of the review to five records concerning correspondence between NAMA and one particular TD. During the review, NAMA fully released three of the withheld records. It argued that the details withheld from the remaining two were outside the scope of the FOI Act, further to the provisions of Schedule 1, Part 1(x)(iii) of the Act.

I have now decided to conclude my review by way of binding decision. In carrying out my review, I have had regard to the above; to correspondence between this Office, NAMA and the applicant; and to copies of the records at issue, which were provided to this Office for the purposes of this review. I have had regard also to the provisions of the FOI Act.

Scope of the Review

Two records, dating from 2015, remain partially withheld. They are listed on NAMA's schedule as pages 172-175 and 274-277. This review is confined to whether or not NAMA has justified its refusal of the information concerned.

Findings

Schedule 1, Part 1
I have no remit to consider directing release of information that is not subject to the FOI Act in the first place. Therefore, the fact that NAMA granted partial access to the two records does not mean that Schedule 1, Part 1(x)(iii) cannot now be relied on.

Section 6 of the FOI Act sets out what "shall be a public body" for the purposes of the FOI Act. Schedule 1, Part 1(x)(iii) provides that section 6 does not include a reference to NAMA "insofar as it relates to records concerning purchasers or potential purchasers of any asset or loan or of any other asset securing loans held or managed by" NAMA.

Pages 172-175 concerns enquiries made by the TD about an offer made by an individual to buy a site. Pages 274-277 identify persons that the TD claims have purchased a particular site. The two records, in their entirety, are records "concerning purchasers or potential purchasers of any asset or loan or of any other asset securing loans held or managed by" NAMA. I consider them to be covered by Schedule 1, Part 1(x)(iii) of the FOI Act and therefore find them not to be subject to the FOI Act. I affirm NAMA's refusal to grant full access to the records.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm NAMA's refusal to grant full access to records 172-175 and 274-276.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.